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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> REMLI v. FRANCE - 16839/90 [1996] ECHR 18 (23 April 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/18.html
Cite as: (1996) 22 EHRR 253, 22 EHRR 253, [1996] ECHR 18
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In the case of Remli v. France (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Pekkanen,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr B. Repik,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 23 November 1995 and
30 March 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 4/1995/510/593. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 18 January 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16839/90) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a French national,
Mr Saïd André Remli, on 16 May 1990.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr R. Pekkanen,
Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici and
Mr B. Repik (Article 43 in fine of the Convention and Rule 21 para. 5)
(art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the orders made in consequence, the
registry received the applicant's and the Government's memorials and
the Delegate's written observations on 7 August, 25 August and 2
October 1995 respectively. On 8 June 1995 the Secretary to the
Commission had supplied the Registrar with various documents he had
requested on the President's instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 November 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Perrin de Brichambaut, Director of Legal
Affairs, Ministry of Foreign Affairs, Agent,
Mrs M. Dubrocard, magistrat, on secondment
to the Legal Affairs Department, Ministry
of Foreign Affairs,
Mr F. Fèvre, magistrat, on secondment to
the Department of Criminal Affairs and
Pardons, Ministry of Justice,
Mr P. Mollard, judge of the Metz District Court, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Ms C. Waquet, of the Conseil d'Etat and
Court of Cassation Bar, Counsel.
The Court heard addresses by Mr Geus, Ms Waquet and
Mr Perrin de Brichambaut and also replies by the latter two to a
question put by one of its members.
AS TO THE FACTS
I. CIRCUMSTANCES OF THE CASE
6. Mr Saïd André Remli, a French national of Algerian origin, is
currently in custody at Les Baumettes Prison in Marseilles.
A. Background to the case
7. On 16 April 1985, while attempting to escape from Lyons-Montluc
Prison, the applicant and a fellow prisoner of Algerian nationality,
Mr Boumédienne Merdji, knocked out a warder, who died four months later
as a result of the blows he had received.
8. The two prisoners were charged with intentional homicide for
the purpose of facilitating, preparing or executing the offences of
escape and attempted escape. In a judgment of 12 August 1988 the
Indictment Division of the Lyons Court of Appeal committed them for
trial at the Rhône Assize Court. On 5 December 1988 the Court of
Cassation dismissed an appeal on points of law that Mr Remli had lodged
against the decision to commit him for trial.
B. Proceedings in the Rhône Assize Court
9. The trial at the Assize Court took place on 12, 13 and
14 April 1989. On the first day, when the sitting began, the members
of the jury and two additional jurors were drawn by lot. The
defendants challenged five of them, the legal maximum, and the
prosecution two of them. The jury was subsequently finally empanelled
and the hearing of witnesses began.
10. On 13 April 1989, at about 1.50 p.m., as the sitting resumed,
counsel for the applicant filed submissions in which they requested the
court to take formal note of a remark made by one of the jurors on
12 April, before the hearing began, which had been overheard by a third
person, Mrs M., and to append her written statement, together with
their submissions, to the record of the trial.
11. Mrs M.'s statement of 13 April read as follows:
"I, the undersigned Mrs [M.], declare on my honour that I
witnessed the following facts:
I was at the door of the court at about 1 p.m., next to a group
of people. From their conversation, I chanced to overhear that
they were members of the jury drawn by lot in the Merdji [and]
Remli against Pahon case.
One of them then let slip the following remark: 'What's more,
I'm a racist.'
I do not know that person's name, but I can state that he was
on the left of the juror sitting immediately to the left of the
judge on the presiding judge's left.
Being unable to attend the hearing to confirm the facts as my
daughter has recently gone into hospital, but being at the
court's disposal if it proves essential to call me as a
witness, I have drawn up this statement to be used for the
appropriate legal purposes."
12. The court, composed in this instance solely of the judges,
withdrew to deliberate and then delivered the following judgment:
"...
According to the handwritten statement of a Mrs [M.] of
13 April 1989, one of the members of the jury in the present
case said 'What's more, I'm a racist' at the door of the court
at about 1 p.m.
According to this statement and the written submissions, these
words were spoken before the beginning of the first hearing in
the instant case and not in the presence of the judges of the
Court.
The Court is thus not able to take formal note of events
alleged to have occurred out of its presence.
For these reasons, it
Refuses the application made to it for formal note to be taken;
Holds that the applicants' written submissions and the
statement of Mrs [M.] are to be appended to the record of the
trial;
..."
13. On 14 April 1989 the Assize Court sentenced Mr Remli to life
imprisonment and Mr Merdji to a twenty-year term, for two-thirds of
which he would not be liable to any form of release.
C. Proceedings in the Court of Cassation
14. Mr Remli appealed on points of law. He argued mainly that the
Assize Court had made a mistake of law and had disregarded Article 6
para. 1 (art. 6-1) of the Convention in holding that it was "not able
to take formal note of events alleged to have occurred out of its
presence" when it had power to do so.
15. In a judgment of 22 November 1989 the Court of Cassation
dismissed the appeal. It gave the following reason in particular:
"The Assize Court rightly refused to take formal note of events
which, assuming they were established, had taken place outside
the hearing, such that it could not have been in a position to
note them."
II. RELEVANT DOMESTIC LAW
16. Procedure in the Assize Court is governed by Articles 231 to
380 of the Code of Criminal Procedure ("CCP").
The Assize Court consists of the court properly speaking - the
presiding judge and, normally, two other judges - and the jury,
composed of citizens who satisfy the conditions of eligibility laid
down by law. It tries mainly serious criminal cases sent to it by the
Indictment Division and related or inseparable lesser offences. No
reasons are given in its judgments, which are appealable only on points
of law.
A. The Assize Court jury
1. Constitution of the jury
17. For each case on the Assize Court's list a jury is empanelled
at the beginning of the trial. It contains nine jurors, drawn by lot
from a session list. This list contains thirty-five names drawn by lot
every three months from an annual list, itself consisting of a variable
number of names drawn by lot from preparatory lists that are compiled
in each municipality after an initial drawing of names by lot from the
electoral register.
One or more additional jurors are also drawn by lot and attend
the trial in order that they may, if necessary, replace any juror who
is unable to sit.
The jury is constituted at the point when the names of nine
jurors who have not been challenged and the names of the additional
jurors have all been drawn by lot.
2. Challenges
18. As the names of the jurors are being drawn, the defendant or
defendants are entitled to challenge up to five of them and the
prosecution up to four. Their grounds for doing so cannot be given.
19. Article 668 CCP provides:
"Any judge may be challenged on any of the following grounds:
1. Where the judge or his spouse is a blood relative or a
relative by marriage of one of the parties or of a party's
spouse, up to the degree of second cousin inclusive. The
challenge may be made against the judge even in the event of
divorce from his spouse or the latter's death where the spouse
was a relative by marriage of one of the parties, up to the
second degree inclusive;
2. Where the judge or his spouse, or a person in respect of
whom either acts as guardian (tuteur), supervisory guardian
(subrogé tuteur) or court-appointed administrator, or a company
or association in whose management or supervision either takes
part has an interest in the dispute;
3. Where the judge or his spouse is a blood relative or
relative by marriage, to the degree indicated above, of the
guardian, supervisory guardian or court-appointed administrator
of one of the parties or of a director or manager of a company
that is a party to the proceedings;
4. Where the judge or his spouse is dependent on one of the
parties;
5. Where the judge has dealt with the case as a judge,
arbitrator or legal adviser, or where he has given evidence as
a witness relating to the facts of the case;
6. Where there has been litigation between the judge, his
spouse or their lineal blood relatives or relatives by marriage
and one of the parties, his spouse or his lineal blood
relatives or relatives by marriage;
7. Where the judge or his spouse is litigating in a court of
which one of the parties is a judge;
8. Where the judge or his spouse or their lineal blood
relatives or relatives by marriage are in dispute over an issue
similar to that between the parties;
9. Where there have been any disagreements between the judge
or his spouse and one of the parties sufficiently serious to
cast doubt on his impartiality."
Article 669 CCP provides:
"A charged person, accused or any party to the proceedings who
wishes to challenge an investigating judge, a judge of the
police court or one or more or all of the judges of the
Criminal Court, the Court of Appeal or the Assize Court must,
if the challenge is to be valid, make an application to the
President of the Court of Appeal.
Members of State Counsel's Office cannot be challenged. The
application must mention by name the judge or judges being
challenged and set out the grounds relied on, together with all
the supporting evidence.
A party who has willingly proceeded in a court or before an
investigating judge shall be entitled to make a challenge only
on grounds of circumstances that have arisen since, where they
are such as to constitute a ground for challenge."
In the case of the Assize Court these provisions apply only to
the judges and not to the jurors.
3. Taking of the oath
20. The members of the jury, standing bareheaded, are addressed by
the presiding judge as follows:
"You swear and promise to consider the charges that will be
brought against X ... with the greatest care; not to betray
either the interests of the accused or those of society, which
is accusing him/her; not to communicate with anyone until you
have returned your verdict; not to be swayed by hatred or
spitefulness or by fear or affection; to reach your verdict in
the light of the charges and the defence, according to your
conscience and your innermost conviction, with the impartiality
and firmness that befit a free man of integrity; and to
preserve the secrecy of the deliberations, even after you have
discharged your office."
Each of the jurors is individually called upon by the presiding
judge and replies, raising his hand: "I swear."
B. Procedural applications or objections during trials and entries
in the record
21. Where an event likely to infringe the rights of one of the
parties occurs during the trial, the party concerned may ask the Assize
Court - composed in this instance of only the judges - to "take formal
note" of it. This is the party's only means of having it recorded.
The Court of Cassation cannot entertain complaints that have been
raised if no application was made to the Assize Court to take formal
note of them and they were not entered in the record of the trial
(Court of Cassation, Criminal Division, 23 December 1899, Bulletin
criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365;
12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40;
5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427;
22 April 1977, Dalloz-Sirey 1978, p. 28).
The Assize Court may refuse to take formal note of events that
are alleged to have occurred outside the hearing. It also has an
unfettered discretion to decide whether evidence should be taken to
verify them (Court of Cassation, Criminal Division, 16 March 1901,
Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909,
Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985,
Garbidjian).
22. Interlocutory decisions on such matters can be challenged by
means of an appeal on points of law, but only at the same time as the
judgment on the merits (Article 316 CCP).
C. Transfer of a case on the ground of reasonable suspicion of
bias (suspicion légitime)
23. Article 662 CCP provides:
"In matters within the jurisdiction of the Assize Court, the
Criminal Court or the police court, the Criminal Division of
the Court of Cassation may remove a case from any investigating
court or judge or any court of trial and transfer it to another
court or judge of the same rank, either where the court that
would normally have jurisdiction cannot be composed as required
by law or where justice is otherwise prevented from taking its
course or on the ground of reasonable suspicion of bias.
An application for transfer may be made either by Principal
State Counsel attached to the Court of Cassation or by the
prosecutor attached to the court dealing with the case, or by
the person charged, or by a civil party to the proceedings.
...
The lodging of an application shall not have any suspensive
effect unless the Court of Cassation orders otherwise.
..."
The Criminal Division has unfettered discretion to determine
whether such a ground is made out on the alleged facts (Court of
Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272;
9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61;
17 November 1964, Bull. crim. no. 301). An applicant is required to
establish the existence of circumstances sufficiently weighty to
justify serious doubts as to the impartiality of the court in question.
This procedure can be used only in respect of a whole court and
not against one or more members of a collegiate court (Court of
Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343;
Revue de science criminelle et de droit pénal comparé 1977, p. 603,
comments by J. Robert).
PROCEEDINGS BEFORE THE COMMISSION
24. Mr Remli applied to the Commission on 16 May 1990. He
complained that he had not had a hearing by an impartial tribunal and
that he had also suffered discrimination on the ground of racial
origin, contrary to Article 6 para. 1 and Article 14 (art. 6-1,
art. 14) of the Convention. He further alleged that he had not had an
effective remedy before a national authority as required by Article 13
(art. 13) of the Convention.
25. On 1 April 1994 the Commission adjourned its examination of the
complaints based on Article 6 para. 1 (art. 6-1) taken alone and
together with Article 14 (art. 6-1+14) and declared the remainder of
the application (no. 16839/90) inadmissible. On 12 April it declared
the first complaint admissible and decided that it was unnecessary to
express an opinion separately on the second complaint, as this was
bound up with the issue of the court's impartiality. In its report of
30 November 1994 (Article 31) (art. 31), it expressed the opinion by
seven votes to four that there had been a violation of Article 6
para. 1 (art. 6-1). The full text of the Commission's opinion and of
the two dissenting opinions contained in the report is reproduced as
an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions - 1996),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
26. In their memorial the Government asked the Court to "dismiss
Mr Remli's application".
27. The applicant requested the Court to
"find that France has breached Articles 6 para. 1 and 14
(art. 6-1, art. 14) of the Convention; and
award just satisfaction under Article 50 (art. 50) ..."
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION
28. The applicant maintained that he had been the victim of a
breach of Article 6 para. 1 (art. 6-1) of the Convention, which
provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing ... by an independent and
impartial tribunal ..."
A. The Government's preliminary objections
29. As they had done before the Commission, the Government raised
two objections to admissibility.
1. Non-exhaustion of domestic remedies
(a) As to the complaint based on Article 6 (art. 6) of the
Convention
30. The Government argued that the domestic remedies had not been
exhausted. Not only had Mr Remli's application to the Assize Court for
formal note to be taken been inappropriate, but the applicant had also
failed either to ask for evidence to be taken or to lodge an
application for transfer of the trial on the ground of reasonable
suspicion of bias.
The Rhône Assize Court could not take formal note of events
which, even supposing their occurrence was established, had taken place
outside the courtroom. Furthermore, by not applying for evidence to
be taken as to the truth of the alleged matters, the applicant had
deprived himself of a remedy that could have redressed the supposed
breach. If the taking of evidence had made it possible to establish
the alleged facts, the Assize Court could have replaced the juror in
question by one of the additional jurors. If the Assize Court had
refused to allow the application for evidence to be taken, Mr Remli
could have applied to the Criminal Division of the Court of Cassation
for a transfer of the trial on the ground of reasonable suspicion of
bias in order to secure the immediate removal of the case from the
Rhône Assize Court. Such a procedure could be used only in respect of
a whole court and not against one or more members of a collegiate court
who were suspected of bias. However, the Government continued, seeing
that the juror in question had not been challenged, the impartiality
of the Assize Court as a whole might be affected and the procedure of
an application for transfer of the trial on the ground of reasonable
suspicion of bias was therefore the appropriate one. Under Article 662
of the Code of Criminal Procedure, the Court of Cassation could have
ordered that the application should have a suspensive effect.
31. In the applicant's submission, the application for formal note
to be taken was the remedy envisaged in Article 26 (art. 26) of the
Convention, since it alone afforded the possibility of having the facts
in issue recorded. It had been the Assize Court's duty to order
evidence to be taken of its own motion if it considered the evidence
filed by Mr Remli - Mrs M.'s written statements - to be insufficient.
Nor could an application for evidence to be taken be regarded as a
remedy for the purposes of Article 26 (art. 26). As to making an
application to have the trial transferred on the ground of reasonable
suspicion of bias, this was a wholly exceptional procedure and could
only be used in respect of a court as a whole and not in respect of a
single juror. Since such an application would not have had a
suspensive effect, the Assize Court would anyway have continued to sit,
so the harm would have been done.
32. The Commission agreed with the applicant's submissions.
33. The Court reiterates that the purpose of Article 26 (art. 26)
is to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Convention institutions (see, for
example, the Hentrich v. France judgment of 22 September 1994,
Series A no. 296-A, p. 18, para. 33). Thus the complaint to be
submitted to the Commission must first have been made to the
appropriate national courts, at least in substance, in accordance with
the formal requirements of domestic law and within the prescribed
time-limits. Nevertheless, the only remedies that must be exhausted
are those that are effective and capable of redressing the alleged
violation (see, among other authorities, the Pressos Compania S.A. and
Others v. Belgium judgment of 20 November 1995, Series A no. 332,
p. 19, para. 27).
34. In the instant case the application for formal note to be taken
was a prerequisite of any subsequent appeal on points of law, since the
Court of Cassation cannot entertain complaints that have not been
formally noted by the Assize Court and have not been entered in the
record of the trial. Admittedly, the Assize Court can refuse to take
formal note of events that have occurred outside the hearing, but it
has the power to order evidence to be taken for the purpose of
verifying them (see paragraph 21 above). That being so, and regard
being had to the fact that by submitting Mrs M.'s written statement to
the Assize Court, the applicant put that court in a position to
exercise its power to order that evidence should be taken, the Court
considers that the application for formal note to be taken was an
effective remedy.
An application for transfer of a trial on the ground of
reasonable suspicion of bias can only be made in respect of a whole
court.
Where the impartiality of a given member of a court is in
issue, only the procedure of a challenge is available. In the case of
members of the jury, however, a challenge can only be made when the
names of the jurors are being drawn by lot, so that it was too late to
make one in the circumstances of the instant case.
The objection must therefore fail.
(b) As to the complaint based on Article 14 of the
Convention taken together with Article 6 (art. 14+6)
35. The Government maintained that in the national courts Mr Remli
had not complained of discrimination on the ground of race or national
origin. The applicant was thus relying on Article 14 (art. 14) for the
first time before the Convention institutions.
36. In the applicant's submission, a breach of Article 14 (art. 14)
could be alleged before the Convention institutions in so far as it was
a consequence of the Court of Cassation's judgment itself.
37. In its decision on the admissibility of the application the
Commission considered that this complaint was bound up with the one
based on Article 6 para. 1 (art. 6-1) and therefore did not require
separate examination.
38. Having regard to the purpose of the requirement that domestic
remedies must be exhausted (see paragraph 33 above), the Court allows
the Government's objection as to the admissibility of the complaint
based on Article 14 taken together with Article 6 (art. 14+6).
2. Application out of time
39. The Government also argued, in the alternative, that the
application had been out of time. The judgment of 22 November 1989,
in which the appeal on points of law against the refusal to take formal
note of events that had occurred outside the courtroom had been
dismissed, was not the final decision from whose date the six-month
period for applying to the Commission began to run. The Court of
Cassation, which ruled on issues of law and not of fact, considered
that the Assize Court had unfettered discretion to decide whether or
not to take formal note of events that occurred out of its presence.
The relevant period had accordingly begun to run on 14 April 1989, when
the Assize Court had delivered its interlocutory judgment, and so the
applicant had not complied with the time-limit.
40. Mr Remli disputed that submission. An appeal on points of law
against interlocutory judgments of the Assize Court was expressly
provided in Article 316, last paragraph, of the Code of Criminal
Procedure.
41. In its decision on the admissibility of the application the
Commission noted the provisions of Article 316 of the Code of Criminal
Procedure. It went on to point out that the Court of Cassation had
held that it had jurisdiction to rule on possible breaches of the
Convention, which was directly applicable in French law; the Government
had not shown that the grounds based on the Convention that had been
argued in the Court of Cassation were contrary to case-law so settled
that the appeal on points of law could not be considered an effective
remedy.
The Delegate of the Commission also pointed out that the ground
of appeal based on a breach of Article 6 (art. 6) of the Convention had
not been declared inadmissible by the Court of Cassation.
In the Commission's opinion, the relevant date for the purposes
of Article 26 (art. 26) was therefore that of the Court of Cassation's
judgment, 22 November 1989.
42. The Court reiterates that an appeal to the Court of Cassation
is one of the remedies that should in principle be exhausted in order
to comply with Article 26 (art. 26). Even supposing that it was
probably bound to fail in this specific case, the filing of the appeal
was thus not a futile step. It consequently had the effect at the very
least of postponing the beginning of the six-month period (see, as the
most recent authority, the A. v. France judgment of 23 November 1993,
Series A no. 277-B, pp. 47-48, para. 30). The objection that the
application was out of time must therefore be dismissed.
B. Merits of the complaint
43. In Mr Remli's submission, if a court trying people of foreign
nationality or origin included a juror who, before the hearing, had
publicly expressed racist sentiments, it lacked impartiality. The
juror in question should not have sat in a case that he was unable to
assess with complete objectivity.
The Rhône Assize Court, however, had dismissed his application
for formal note to be taken of the remark in issue, although it had had
jurisdiction to allow it. Mrs M.'s written statement had been clear,
detailed and free from ambiguity or inconsistency, had accurately
reported the remark and had identified the person who had uttered it.
Where, as in the instant case, the alleged facts were such as
to cast very serious doubt on the impartiality of one of the jurors,
the Assize Court was, the applicant submitted, under an obligation to
take formal note of it, failing which it would be denying the accused
the opportunity of being tried by an impartial tribunal. In short, the
Assize Court and the Court of Cassation should have reacted.
44. The Government conceded that a court containing a juror who had
declared himself to be a racist could not be regarded as impartial.
Nevertheless, it had to be established with certainty that such racist
opinions were really held and evidence had to be brought to show that
they could have influenced the conviction. In the instant case,
however, Mrs M.'s statement was not, the Government continued,
sufficiently reliable or supported to amount to evidence capable of
objectively casting doubt on the jury's impartiality. For one thing,
it conflicted with what the applicant's lawyers had said and, for
another, the sentence "What's more, I'm a racist" was just as likely
to have been uttered as a joke or in connection with another case or
solely in relation to the applicant's co-defendant, an Algerian
national, and not to Mr Remli himself, who had French nationality. It
was therefore not possible to consider that it had been established
that there was a doubt as to the impartiality of a member of the jury
that had tried the applicant.
Furthermore, a court could not be expected to verify all the
remarks that a juror might make before being drawn by lot. In the
instant case, the juror in question had not been challenged.
Thereafter it was the impartiality of the jury itself that was
relevant. In the instant case, however, it was difficult to describe
the jury as a whole as biased, especially as under the Code of Criminal
Procedure any decision unfavourable to an accused had to be taken by
a majority of at least eight.
45. In the Commission's opinion, the statement drawn up by Mrs M.
contained no inconsistencies and made it possible to identify with
accuracy the person who had made the remark. As the Assize Court had
not verified the alleged facts, the applicant was reasonably entitled
to call the juror's impartiality into question, and his fears in this
respect were objectively justified. There had therefore been a breach
of Article 6 para. 1 (art. 6-1) of the Convention.
46. The Court refers to the principles laid down in its case-law
concerning the independence and impartiality of tribunals, which apply
to jurors as they do to professional and lay judges (see the Holm
v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14,
para. 30).
When it is being decided whether in a given case there is a
legitimate reason to fear that a particular judge lacks impartiality,
the standpoint of the accused is important but not decisive. What is
decisive is whether this fear can be held to be objectively justified
(see, among other authorities, the Saraiva de Carvalho v. Portugal
judgment of 22 April 1994, Series A no. 286-B, p. 38, para. 35, and the
Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B,
p. 20, para. 27).
47. The Court notes that in the instant case the Rhône Assize Court
had to try Mr Remli and his co-defendant, both of them of North African
origin, and that a third person, Mrs M., certified in writing that she
had heard one of the jurors say: "What's more, I'm a racist."
It is not for the Court to rule on the evidential value of
Mrs M.'s written statement or on whether the racist remark attributed
to the juror in question was actually made. It notes merely that
Mrs M.'s statement - which contained a serious allegation in the
context of the case - was filed with the Assize Court by the
applicant's lawyers, who asked the court to take formal note of it.
The court dismissed their application without even examining the
evidence submitted to it, on the purely formal ground that it was "not
able to take formal note of events alleged to have occurred out of its
presence". Nor did it order that evidence should be taken to verify
what had been reported - and, if it was established, take formal note
of it as requested by the defence - although it could have done so.
Consequently, the applicant was unable either to have the juror in
question replaced by one of the additional jurors or to rely on the
fact in issue in support of his appeal on points of law (see
paragraph 21 above). Nor could he challenge the juror, since the jury
had been finally empanelled (see paragraph 17 above) and no appeal lay
against the Assize Court's judgment other than on points of law (see
paragraph 16 above).
48. Like the Commission, the Court considers that Article 6 para. 1
(art. 6-1) of the Convention imposes an obligation on every national
court to check whether, as constituted, it is "an impartial tribunal"
within the meaning of that provision (art. 6-1) where, as in the
instant case, this is disputed on a ground that does not immediately
appear to be manifestly devoid of merit.
In the instant case, however, the Rhône Assize Court did not
make any such check, thereby depriving Mr Remli of the possibility of
remedying, if it proved necessary, a situation contrary to the
requirements of the Convention. This finding, regard being had to the
confidence which the courts must inspire in those subject to their
jurisdiction, suffices for the Court to hold that there has been a
breach of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
49. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Non-pecuniary damage
50. Mr Remli claimed 1,000,000 French francs (FRF) in respect of
non-pecuniary damage.
51. The Delegate of the Commission invited the Court to assess that
damage on an equitable basis.
52. Like the Government, the Court considers that the finding of
a breach of Article 6 para. 1 (art. 6-1) constitutes in itself
sufficient just satisfaction.
B. Retrial or reduction of sentence
53. The applicant further sought a retrial by an assize court
affording all the guarantees of impartiality or, failing that, a
reduction of his life sentence to fifteen years' imprisonment.
54. Like the Government and the Delegate of the Commission, the
Court points out that Article 50 (art. 50) does not give it
jurisdiction to make such an order against a Contracting State (see,
for example, the Saïdi v. France judgment of 20 September 1993, Series
A no. 261-C, p. 57, para. 47).
C. Costs and expenses
55. Mr Remli sought FRF 166,896 (including value-added tax - VAT)
for costs and expenses, that is to say FRF 118,600 for those incurred
in the national courts and FRF 48,296 for those incurred before the
Convention institutions.
56. The Government maintained that the applicant had not provided
vouchers for these expenses, so that the claim should be disallowed or,
failing that, the question of the application of Article 50 (art. 50)
should be reserved. They added that at all events, costs and expenses
incurred in the national courts should not be reimbursed.
57. The Delegate of the Commission considered that the
reimbursement of costs and expenses had to be limited to those incurred
in the national and international legal systems in order to remedy the
alleged breach.
58. The Court notes that the applicant gave particulars of his
claims in his memorial and his supplementary observations and, making
its assessment on an equitable basis, awards him FRF 60,000, including
VAT.
D. Default interest
59. According to the information available to the Court, the
statutory rate of interest applicable in France at the date of adoption
of the present judgment is 6.65% per annum.
FOR THESE REASONS, THE COURT
1. Dismisses by seven votes to two the Government's preliminary
objection based on non-exhaustion of domestic remedies in
respect of the complaint under Article 6 (art. 6) of the
Convention;
2. Holds unanimously that as domestic remedies have not been
exhausted, it cannot entertain the complaint under Article 14
of the Convention taken together with Article 6 (art. 14+6);
3. Dismisses unanimously the Government's preliminary objection
based on failure to comply with the six-month time-limit;
4. Holds by five votes to four that there has been a breach of
Article 6 para. 1 (art. 6-1) of the Convention;
5. Holds unanimously that this judgment constitutes sufficient
just satisfaction in respect of the alleged damage;
6. Holds by eight votes to one that the respondent State is to pay
the applicant, within three months, 60,000 (sixty thousand)
French francs for costs and expenses, on which sum simple
interest at an annual rate of 6.65% shall be payable from the
expiry of the above-mentioned three months until settlement;
7. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 April 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the dissenting
opinions of Mr Thór Vilhjálmsson, Mr Pettiti, Mr Lopes Rocha and
Mr Mifsud Bonnici are annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
As to the preliminary objections raised by the Government, I
agree with the majority of the Court.
On the merits of the case, I would like to make the following
remarks.
If the alleged violation is tested against the everyday
experience of those who work as judges or advocates, it seems obvious
to me that it is far-fetched and could not have influenced the verdict,
even if the facts as set out by the applicant are assumed to be
correct. I find, with respect, that the complaint is so trivial that
the case falls outside the sphere of human rights. I accordingly
disagree with the majority of the Court on the merits of the case and
find no violation of the Convention.
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
I voted with the minority in favour of finding that there had
been no breach of the Convention, contrary to the reasoning adopted by
the majority of the Chamber.
The majority consider that the Assize Court's refusal to take
formal note of Mrs M.'s written statement was such as to put in doubt,
at least to Mr Remli's mind, the court's impartiality within the
meaning of Article 6 (art. 6) of the Convention.
As the basis for reaching this conclusion the Chamber takes the
text of Mrs M.'s statement, worded as follows:
"I, the undersigned Mrs [M.], declare on my honour that I
witnessed the following facts:
I was at the door of the court at about 1 p.m., next to a group
of people. From their conversation, I chanced to overhear that
they were members of the jury drawn by lot in the Merdji [and]
Remli against Pahon case.
One of them then let slip the following remark: 'What's more,
I'm a racist.'
I do not know that person's name, but I can state that he was
on the left of the juror sitting immediately to the left of the
judge on the presiding judge's left.
Being unable to attend the hearing to confirm the facts as my
daughter has recently gone into hospital, but being at the
court's disposal if it proves essential to call me as a
witness, I have drawn up this statement to be used for the
appropriate legal purposes."
It also takes into account the Assize Court's judgment, which
gave the following reasons:
"...
According to the handwritten statement of a Mrs [M.] of
13 April 1989, one of the members of the jury in the present
case said 'What's more, I'm a racist' at the door of the court
at about 1 p.m.
According to this statement and the written submissions, these
words were spoken before the beginning of the first hearing in
the instant case and not in the presence of the judges of the
Court.
The Court is thus not able to take formal note of events
alleged to have occurred out of its presence.
..."
Admittedly, the Chamber indicates in paragraph 47 that it is
not ruling on the evidential value of the statement, but it accepts it
as to date and content, at the risk of contradicting itself. In so
doing, the Chamber admits, at least by implication, that the alleged
remark was made on 12 April 1989 and thus called for a response from
the Assize Court.
But the text of the statement cannot be glossed or interpreted.
Taken as it stands, it means that the remark was heard on the 13th.
On the 12th it was physically impossible for Mrs M., at the door of the
lawcourts before the hearing, to know that the person overheard was one
of the jurors in the Remli case, since the drawing of lots did not take
place until after 1 p.m. on the 12th.
Counsel for Mr Remli stated in his submissions that the remark
had been made on the 12th, which is clearly a mistake. On the 12th,
moreover, it would have been possible to challenge the juror when the
lots were drawn, as was done in the case of other jurors. On the 13th
it was no longer possible. That being so, refusal to make an entry in
the record was reasonable. At all events, on the 13th the defence had
other means available to them for clearing up the difficulty, namely
asking the presiding judge to exercise his discretion to order that
Mrs M. should be heard, or else applying for evidence to be taken. If
even those applications had been refused, the defence could have acted
on those refusals accordingly, but for tactical reasons they decided
otherwise. The Chamber (see paragraph 48) criticises the Assize Court
for not having made any check. In so doing, it runs the risk of
substituting it own assessment of the facts for that of the national
court, especially as the nature and bearing of the "hypothetical"
remark have not been made explicit in the judgment. At all events, the
impossibility of remedying such a situation is, in the Chamber's view,
the basis of the ruling that there has been a violation. This seems
to me to be open to criticism.
To support such reasoning, the Chamber would have had, in my
view, firstly to rule on the failure to request a hearing to apply for
evidence to be taken and secondly, and above all, to rule on the
possibility which remained open to the defence of applying to the
Criminal Division of the Court of Cassation for trial by another court
on the ground of reasonable suspicion of bias.
This procedural step was looked at by the Chamber in the
context of the objection as to non-exhaustion of domestic remedies in
respect of its non-suspensive effect, but was not dealt with in the
context of the appropriate remedy for counteracting, if necessary, any
risk of non-impartiality or even of an appearance of partiality.
Admittedly, an application for transfer on the ground of
reasonable suspicion of bias would not have had a suspensive effect.
Admittedly, if it had been allowed by the Criminal Division of the
Court of Cassation, the resulting decision would have been directed at
the whole court, not only the impugned juror.
But for the purposes of Article 6 (art. 6) of the Convention
the remedy for any lack of impartiality may result from an application
directed against the court as a whole and not exclusively from one
directed against a single judge or juror.
At all events, the Chamber was under an obligation to rule on
this point and on the possible outcome of lodging an application for
trial by another court on the ground of reasonable suspicion of bias.
Furthermore, in the instant case, there was nothing in the
domestic proceedings to establish that the remark, if it was made,
would have been decisive for the court as a whole and for the jury's
vote (see paragraph 44 of the judgment).
The doctrine of appearances in relation to Article 6 (art. 6)
of the Convention must not be taken to extremes.
In the instant case the Chamber seems to me to have deviated
from the Court's traditional line in not taking account of domestic
remedies which make it possible to deal at least at last instance with
any risks that the rule of impartiality has not been complied with.
DISSENTING OPINION OF JUDGE LOPES ROCHA
(Translation)
I regret that I do not agree with the majority as regards the
merits of the case.
Like Judge Pettiti, I believe that in the instant case there
is nothing to show that the remark attributed to the juror in question
could have thrown any doubt on the impartiality of the Assize Court as
a whole; even supposing that the remark was actually made, it did not
suffice to call the court's impartiality reasonably in question.
Such a remark, taken out of a context whose details and
particular circumstances are unknown, might only have been a "joke".
It does not necessarily demonstrate bias capable of influencing the
vote of the person who made it at the stage of the collegiate court's
decision.
As Judge Thór Vilhjálmsson points out in his dissenting
opinion, the complaint is of such triviality in the light of all the
facts of the case that it cannot reasonably be convincing as to the
existence of a breach of the right to an impartial tribunal.
This is why, in my view, there has not been a breach of
Article 6 (art. 6) of the Convention.
DISSENTING OPINION OF JUDGE MIFSUD BONNICI
1. In considering the procedural possibilities open to the
applicant after his advocate was informed about the words allegedly
heard by
Mrs M., I formed the opinion that the application should fail because
the domestic procedural remedies had not been exhausted before recourse
was had to the Convention organs.
2. The jury of nine and two supplementary jurors had been
empanelled and the Assize Court had already begun to hear witnesses.
According to the rules in the French Code of Criminal Procedure, at
that stage, it was not possible to challenge a juror. The applicant
therefore correctly requested the court to take formal note of the
incident reported by Mrs M. The court did not accept the request to
investigate the allegation but nevertheless ordered that the advocate's
written submissions and Mrs M.'s statement should form part of the
record of the trial.
3. At this stage of the trial the applicant could have considered
the provisions of Article 662 of the Code of Criminal Procedure
(paragraph 23 of the judgment) enabling him to apply to the Court of
Cassation to move the case to another trial court on the ground of
reasonable suspicion of bias. This was possible because of the Assize
Court's decision to include in the record of the trial Mrs M.'s
statement and the written submissions of the defence. The order of the
Assize Court, in fact, could have no other practical purpose but this,
taking into account the terms of the domestic rules of criminal
procedure.
4. It is of course true that the jurisprudence of the Court of
Cassation was in the sense that such a request will not be granted
unless the suspicion of bias covers the whole composition of the court
and not only one of its members, but I consider that the Court of
Cassation should have been put in a position to review its
jurisprudence in the matter against the background of the Convention
rules which now have to be taken into account by the French courts.
The doctrine of precedent is not part of the French legal order.
5. It may be objected that this expects too much from the
applicant. However, I am of the opinion that this is the spirit of
Article 26 (art. 26) of the Convention, which stipulates that all
possible domestic remedies have to be exhausted before recourse is had
to the Convention's judicial organs. Every Contracting State has to
be given all possible opportunities "of preventing or putting right the
violations alleged" as stated in Cardot v. France judgment of
19 March 1991 (Series A no. 200, p. 19, para. 36), which was preceded
by the dictum in De Wilde, Ooms and Versyp v. Belgium (judgment of
18 November 1970, Series A no. 12, p. 29, para. 50) "to put matters
right through their own legal system". Given the rigidity of the rules
of the French Code of Criminal Procedure, I am of the opinion that the
application of Article 26 (art. 26) was more impellent than ever, in
a matter such as the one under consideration, which, potentially, can
be taken to be of not infrequent occurrence in criminal trials before
assize courts in France. My view of the matter is strengthened by the
further consideration that the Assize Court could have easily replaced
one juror by a supplementary one unless it felt that it could not do
this within the ambit of the Code of Criminal Procedure unless directly
or indirectly, by implication, it had a direction by, or through, a
decision of the Court of Cassation.
6. Taking all this into consideration, I could not proceed further
into the case as it appears to me to be disproportionate to consider,
even if one were to concede that one out of nine jurors sitting with
three judges in the trial nurtured a generic racial prejudice, that
this should lead to the conclusion that the trial was not "fair"
because the court was not "impartial". The circumstance, in my
opinion, when considered against the background of the proceedings
taken as a whole (see Barberà, Messegué and Jabardo v. Spain judgment
of 6 December 1988, Series A no. 146, p. 31, para. 68), does not
justify a holding of a violation of Article 6 para. 1 (art. 6-1) of the
Convention.